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2011-UP-439 - Deese v. Schmutz

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Charles Edward Deese, Jr., Appellant,

v.

Stephen Schmutz, Respondent.


Appeal From Charleston County
 R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-439
Submitted October 1, 2011 – Filed October 11, 2011


AFFIRMED


Charles E. Deese, Jr., pro se, for Appellant.

Davis W. Overstreet and Michael B. McCall, both of Charleston, for Respondent.

PER CURIAM: Charles Edward Deese, Jr., appeals the circuit court's order dismissing his legal malpractice action against Stephen Schmutz.  On appeal, Deese argues the circuit court erred in: (1) dismissing Deese's legal malpractice action against Schmutz and (2) failing to grant Deese recovery on the theory of quantum meruit for his excessive fee complaint.  We affirm.[1]

We find the circuit court properly dismissed Deese's legal malpractice action against Schmutz because Deese failed to submit an expert affidavit identifying Schmutz's alleged negligent acts.  See  S.C. Code Ann. § 15-36-100(B)[2] (Supp. 2010) (requiring a plaintiff alleging professional negligence against an attorney-at-law to submit an affidavit from an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit).  Deese never submitted an expert witness's affidavit identifying Schmutz's alleged negligent act or omission.  In fact, Deese had over four months from the time he received notice of the motion to dismiss based on these grounds to correct his error by submitting an affidavit from an expert witness.  Deese also acknowledged that he did not have an affidavit during the hearing. Because Deese failed to submit an expert witness's affidavit identifying Schmutz's alleged negligent act or omission, the circuit court did not err in dismissing the legal malpractice action for failure to comply with section 15-36-100(B). 

We decline to address whether the circuit court erred in failing to grant Deese relief on the theory of quantum meruit for his excessive fee claim because this issue was not preserved for our review. See Walterboro Cmty. Hosp. v. Meacher,  392 S.C. 479, 493, 709 S.E.2d 71, 78 (Ct. App. 2011) (finding an issue must be raised to and ruled upon by the circuit court in order to be preserved for appellate review). 

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Deese argues this statute is inapplicable because his cause of action arose prior to the statute's effective date of July 1, 2005.  This issue is not preserved for our review because Deese's question regarding the effective date of the statute was not raised until Deese's second memorandum in support of his motion to alter or amend, which was filed after the circuit court had denied Deese's Rule 59(e), SCRCP motion.  See MailSource, LLC v. M.A. Bailey & Assocs., Inc.,  356 S.C. 370, 374, 588 S.E.2d 639, 641 (Ct. App. 2003) ("A party cannot raise an issue for the first time in a Rule 59(e), SCRCP motion which could have been raised at trial.").